What Does a Probate Litigation Attorney Do?

When a person passes away, his or her assets must be distributed to the rightful heirs and/or beneficiaries. Probate is the judicial or court mechanism by which this occurs when someone has no will, has a will, or has a trust but failed to fund all assets into that trust, leaving them subject to probate. If there is no will, state law dictates how assets will be distributed. If there is a last will and testament outlining the wishes of the decedent, it will direct what estate assets will be inherited by whom – i.e. family members, heirs, beneficiaries, charities, etc.. Ideally, these instructions are clear, so that the process proceeds smoothly. However, in some cases, disputes arise that lead to litigation. Litigation is no small undertaking, subject to specific rules, deadlines, etc. A probate litigation attorney helps individuals, heirs, beneficiaries, executors, and trustees navigate the litigation process to secure the best result.

Probate litigation definition

Probate litigation simply refers to the legal proceedings associated with contesting a will, disputing a trust, seeking redress for a breach of fiduciary duty, quieting title to a property, securing property that was wrongfully taken, addressing incapacity or undue influence issues, or tackling a tortious interference with expected inheritance claim..

What is probate litigation really?

Probate litigation is the judicial or court process by which individuals seek to address a perceived wrong or other direction from the court concerning a loved one’s will or trust.

Is a probate litigation attorney the same as a probate litigation lawyer?

Yes, the terms “attorney” and “lawyer” are interchangeable. However, note that there is a difference between a probate litigation attorney and an estate planning attorney. In general, a probate litigation attorney is a trial lawyer who is familiar with wills, trusts and estate planning issues and the court processes involved in contesting a will, disputing a trust, etc. While an estate planning attorney typically is an expert in creatings estate plans, trusts, and last wills and testaments, routinely they are not familiar with and do not get involved in trials and trial preparation issues that a probate litigation attorney handles regularly.

When do I need to hire a probate litigation attorney?

The short answer is that you should be consulting a probate litigation attorney any time you question what a loved one is doing or has done with their estate, or, if you are an executor or trustee, when questions are being asked about how you are administering a will, estate, trust or trust estate. A probate litigation attorney is typically called upon to resolve common will, trust, and estate disputes, including:

Contesting a Will

Frequently, especially with elderly or impaired loved ones, a will, trust or estate plan is changed under suspicious circumstances – e.g. in the hospital after a stroke – or to make an unnatural person a beneficiary – e.g. a caregiver. Sometimes a will, trust or estate plan may contain mistakes or omissions that need to be addressed. In any of these cases, a will or trust will need to be legally contested or disputed in court, or court guidance will be needed to resolve the mistake or omission.

Undue Influence

Undue Influence refers to a situation in which a person in a position of power takes advantage of another individual. It is one of the most common reasons for contesting a will. Often, an undue influence claim will coincide with a claim that the decedent did not have sufficient mental capacity, and as a result of that incapacity was susceptible to undue influence. If one or more heir or beneficiary believes that someone overcame the decedent’s own desires for their benefit, the heir or beneficiary may challenge the validity of the document or distribution and seek to have the assets of the estate distributed in accordance with what the court confirms to be the decedent’s true wishes.

Mental Incapacity

As part of undue influence, a probate litigation attorney may challenge the validity of a will if an heir or beneficiary believes that the decedent lacked the mental capacity to make sound judgments about how their assets should be divided.

Breach of Fiduciary Duties

An executor is the fiduciary, often an individual family member, appointed to fulfill the requirements of a will. A trustee is the fiduciary appointed to fulfill the requirements of a trust. If for whatever reason, they don’t act in accordance with the decedent’s instructions or their obligations under the law, then probate litigation is the tool to seek suspension or removal of the fiduciary, appointment of a responsible fiduciary appointed, and recovery of damages from the fiduciary for their fiduciary breach.

Do I need a probate litigation attorney near me?

Probate litigation hearings and trials typically occur in county probate court where the decedent died, in the case of a will dispute, or any counter in which the trust is being administered. For this reason it is important that the probate litigation attorney is familiar with the county probate court in which the case is taking place. So, if the decedent lived in Los Angeles, and the litigation is taking place in Los Angeles Superior Court – Probate Division, then it’s probably best to retain a Los Angeles probate attorney familiar with the court. If the decedent lived in Miami, then it’s probably best to retain an attorney familiar with the Miami-Dade County Probate Courts.